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There are surprisingly few appellate division cases focusing on the employer’s obligation to provide continuing opioid treatment. Martin v. Newark Public Schools, A-0338-18T4 (App. Div. October 4, 2019) is therefore one case practitioners should study closely.
The case involved a reopener of an award for Samuel Martin of 15% permanent partial disability for aggravation of a pre-existing lumbar disc herniation and bulging disc. Several years after the award was entered, respondent stopped paying for ongoing Percocet prescriptions. Petitioner then filed a motion for medical benefits seeking reimbursement for continued prescription opioid medication that he was paying for himself.
The initial award occurred in November 2014. The treating physician, Dr. Patricio Grob, oversaw petitioner’s treatment from 2011 to 2017. Petitioner was using opioids for much of this time. In a note from his June 2016 examination of petitioner, Dr. Grob said that Percocet was controlling Mr. Martin’s pain poorly. He added that “prolonged narcotic use would not manage his radicular complaints … and can complicate recovery.” Dr. Grob did suggest surgery, but petitioner declined surgery due to an unrelated blood condition which might cause complications.
In Dr. Grob’s final medical note dated September 13, 2017, he wrote, “I would recommend an attempt to wean from Percocet and if we are unsuccessful, Martin would then need to consider having a discussion with a pain management specialist to see if there is any palliative standpoint that may be needed from a chronic management of Martin’s discomfort.” It was the opinion of Dr. Grob that Percocet was not relieving Martin’s condition and would never improve it.
On January 8, 2018, Martin saw Dr. Harris Bram, a pain medicine physician, for a one-time evaluation in support of petitioner’s motion for medical benefits. Dr. Bram noted that petitioner’s MRI showed disc desiccation at L4-5 and L5-S1, and a disc herniation at L5-S1. Dr. Bram noted that petitioner self-reported that Percocet abated his pain by about 60% and that he was more active on the medication. However, Dr. Bram also reviewed petitioner’s history and noted that petitioner reported his Percocet provided only “small pain relief.”
Dr. Bram found only a few positive physical findings on physical examination. Martin’s lower extremities were neurologically intact and his gait was normal. Nonetheless, Dr. Bram found petitioner had low back pain, lumbar radiculopathy, and sacroiliitis. He said “it was reasonable that Martin be on opioid medication on a long term basis for his pain. I thought that was reasonable for him.”
The Judge of Compensation found that Dr. Grob was more persuasive than Dr. Bram, who was a one-time evaluator. The Judge commented that Dr. Bram “did not provide any medical evidence that such treatment will permit the petitioner to function better.” The Judge also found no evidence that continued opioid medication would relieve Martin’s pain.
Petitioner appealed and argued that the Judge misapplied the standard governing an application for palliative care. The Appellate Division first noted that treatment is compensable if competent medical testimony shows that it is “reasonably necessary to cure or relieve the effects of the injury.” Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327 (App. Div. 1995). The Court added that the Hanrahan case required that the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.” The Court finally reflected that the Hanrahan decision concluded that there may be a point at which “the pain or disability experienced by the worker is insufficient to warrant the expense of active treatment.” Hanrahan at p. 336.
The Appellate Division suggested that Dr. Grob was in a much better position to opine on reasonable and necessary treatment in this case because he had treated petitioner for six years and had concluded that Martin’s pain had not been alleviated with medication or therapy. Petitioner argued that Dr. Grob had referred petitioner for pain management. The Court disagreed, “It was Dr. Grob’s medical opinion that if petitioner was unsuccessful in weaning himself from prescription opioid medication, Martin ‘would then need to consider having a discussion with a pain management specialist.’” The point the Court was making was that the referral would only be needed if petitioner could not wean himself off opioid medication.
The Appellate Court was not impressed with the testimony of Dr. Bram because there were few objective physical findings on examination and no testimony that continued opioid use would reduce Martin’s pain symptoms and return him to better function. The Court did not believe it was sufficient to order continued opioid medication with a mere assertion by Dr. Bram that continued opioid use was “reasonable.”
One other side issue in this case is worth noting as well. Shortly before Dr. Grob was scheduled to testify at trial, petitioner’s counsel sought an opportunity to interview Dr. Grob ex parte. Dr. Grob was not returning phone calls from petitioner’s counsel about a meeting. The Judge of Compensation allowed the interview but only if respondent’s counsel was present since respondent’s counsel had made clear that Dr. Grob would be his witness in the motion trial. The Judge of Compensation denied the request for an ex parte interview without respondent’s counsel. Petitioner’s counsel argued that his client had a patient-physician privilege and therefore he should have the right to an ex parte interview.
The Appellate Division found that the Judge of Compensation exercised proper discretion in requiring that both counsel be present for the interview. This ruling is significant because it is the appellate case in workers’ compensation that comments on such an issue.
This case is very interesting for a number of reasons. Paying for opioid medications – even after awards are entered – occurs with greater frequency in the last decade. There seems to be a great deal of disagreement on when such continued opioid use is required past the point of MMI. This case suggests a very practical solution: there must be proof that the opioid medications are providing curative relief and proof that the continued use of opioids is improving the function of the injured worker. This emphasis on function comes from the Hanrahan case. In this case the surgeon made clear that opioid use would not improve function, would not relieve pain and might even create more complications. The problem in this case was that petitioner could not present proof of improvement of function caused by continued opioid use over the many years the petitioner had been on Percocet.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The New Jersey workers’ compensation system has one glaring drawback for employers, namely the absence of any formal discovery in traumatic injury cases. There are no standard interrogatories in traumatic claims and no depositions. The consequence of this is that claims sometimes get passed through workers’ compensation that really involve long-standing and preexisting conditions which no one asked the worker about. There are many cases where preexisting conditions that may have been highly relevant are discovered only in the final IME for permanency long after surgery has taken place. The defense IME physician will often question causation at this point, but it is too late to recover payments made by that time.
What should adjusters and treating physicians ask about when new claims arise? There are numerous areas of inquiry that are important, but this blog will focus on only five main areas. Before delving into past medical and life history, remember that knowing the mechanism of injury is the starting point in every case. Best practice is to have the injured worker write down in his or her own words how the injury occurred and where the pain is located. Once that is done, we move on to the past medical history. Certainly in all states, particularly densely populated states like New Jersey, an important question is about past motor vehicle accidents. If the answer is that the worker has been involved in prior motor vehicle accidents, this should be narrowed down to accidents which led to treatment along with the names of the treating physicians so that the adjuster or defense counsel can take steps to obtain prior records. Yes, ISO reports are helpful but there are many cases where the ISO report does not reference a prior motor vehicle accident that the employee talks about. Remember that the focus should not be just on prior car accidents but on prior accidents in general, such as slip and fall injuries, sports injuries and the like.
Another critical area to inquire about for spine and shoulder cases concerns prior chiropractic history. Why is this important? Because prior chiropractic treatment records will often bear directly on any claim involving the shoulders or spine. The records themselves often reference preexisting injuries, prior x-rays and prior MRI scans. This information may be from many years ago or may be fairly recent. If it is from many years ago, the information may still help the employer obtain credits for preexisting disability under N.J.S.A 34:15-12(d). That may mean a cost savings for employers. If the prior chiropractic treatment was close in time to the accident, the records may raise causation issues that may result a denial of the case or a Section 20 settlement.
That leads to our third important area of inquiry: prior x-rays, prior MRIs, prior CT scans, and prior EMGs. These are the studies that Judges of Compensation must focus on because the emphasis in New Jersey, when it comes to permanency, is on “objective medical evidence.” All of these studies are considered to be objective evidence. Employers are often surprised that their treating doctors do not ask specifically about these prior studies, but experienced workers’ compensation physicians will routinely ask about prior studies. Defense counsel can write to opposing counsel and ask about prior studies and scans, yet there is no formal rule in New Jersey for exchange of such information. That means that adjusters who do initial interviews are often in the best position to ask these questions, and initial treating physicians should also be asking questions along these lines.
Prior and current hobbies and recreational activities are paramount. Consider, for example, a worker who reports that many years of standing and lifting at work caused severe knee degeneration leading to a need for bilateral knee replacements. As we know, total knee replacement surgery is performed because of a painful bone-on-bone condition that takes years to develop. Yet seldom does one see specific questions about long-distance running, jogging or martial arts in the medical records. These are activities that can cause or contribute to knee problems.
Last but not least in the top five areas of inquiry (there are many more areas of importance, of course) are second jobs and other employment involving physical activities. Many New Jersey residents have second jobs. The state is an expensive place to live in, and a surprisingly large percentage of workers has secondary employment. Many police officers and firefighters have second jobs because they have shift work with several days off in a row. If a worker files a claim for carpal tunnel syndrome from occasional typing and answering phones at work, the adjuster and treating doctor should be asking about typing activities in any other job, Facebook and social media keyboard activities, and certainly part-time jobs such as working as a deli clerk or playing music professionally.
Many years ago this practitioner had a bewildering case in which a worker with a sedentary job filed for a hernia claim from some minor physical effort at work. The employer did not want to accept the traumatic claim and subsequent surgery because the accident seemed so minor. The case went to trial. In the course of testimony, the worker admitted to having a second job which he conceded was very physical: namely, tree climbing for 20 hours per week. He admitted to having abdominal pain while performing this activity. No one knows anything about this second job! Why? Because the New Jersey compensation system does not have formal discovery. This puts employers at a huge disadvantage. The lesson is that sometimes the second job is much more physical than the full-time job for which the claim has been filed, but you won’t know about the second job if no one asks.
A recorded statement taken by an adjuster at the start of the case is invaluable to defense counsel, as are employee accident forms filled out by injured workers and detailed medical histories obtained by occupational and treating physicians. We generally know what happened after the work accident, so there must be some time spent on taking a history of the injured worker’s prior injuries, jobs and recreational activities. Without this information employers are often at a loss to make an intelligent decision on whether to accept or deny a case. Causation is the threshold issue in workers’ compensation: if it is not a work-related condition, the case should not be going through workers’ compensation.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Employers are responsible for “accidents arising out of employment” under most state workers’ compensation laws. What does this language really mean? The easiest way to interpret this language is to consider whether the accident has a genuine connection to work or just happens to occur at work.
Take for example someone who is sitting at work talking to a colleague about a work matter when suddenly her jaw locks, causing severe pain and leading to treatment. Would this be a work accident covered under workers’ compensation? It happened at work, yes, but what is the connection to work? The answer is that there is no bona fide connection to work activities. Talking is something we do all day and does not amount to an accident. If you consider the same scenario to have happened at home, where a husband is speaking to his wife when his jaw locks, one would certainly not call this a “home accident.” Just as the home did not cause this to occur, neither would work be the cause of such an incident. Some events just happen to occur at home or at work because we spend most of our time in these two locations. These kinds of events could just as easily happen at the local supermarket or at a museum.
In much the same way, if one is walking from his den to his kitchen at home when his knee locks, leading to a visit to a knee surgeon for treatment, few would call this a “home accident” unless there was a fall on the floor or a collision with an object. The same would be true at work: feeling leg pain while just walking is not an accident absent a fall or some other force acting on one’s body. Yet we all know that claims like this get accepted all the time by employers because of a mistaken belief that something is compensable in workers’ compensation just because it happened at work. The part of the equation that is often missed is that there must be some genuine connection to work, such as a slip and fall on a hard surface, a trip and stumble on a torn carpet, or a collision with an object at work.
The definition of an accident is “an unexpected event.” So if a teacher is walking and a student comes barreling down the hallway, not paying attention, and slams into the teacher causing a hard fall and damage to the knee, that is an unexpected event clearly connected to work. It both happens at work and arises out of work and is therefore compensable.
It remains this practitioner’s opinion that many cases get accepted in workers’ compensation that really have no connection to work other than that the event just happens to occur at work. If you are at home, and you put on your overcoat on a cold day to go outside, when you feel a tear in your shoulder, you would not think that the home caused the tear in the shoulder. The same is true if this happened to occur at work. The reason such events often get accepted is that the employer sends the employee to a doctor, thinking the compensability decision depends on a doctor’s opinion. It doesn’t. The doctor then prepares a report and states the obvious: that putting on the coat caused a tear in the shoulder. But the issue is a legal one not a medical one: does it arise out of work, or is there a true work connection? We all put our coats on during cold weather several times a day. As a matter of law, not medicine, this tearing one’s shoulder while putting on one’s coat to go home is not an accident covered by workers’ compensation. There is no work connection at all, and it just so happens that at this point in one’s life a tear occurred while from a personal action.
We all know this concept is true because we all have heard of cases where someone is driving a car and suddenly has a stroke. Or someone is sitting at a chair at home or work when the stroke occurs. Where the stroke happens to occur is simply pure coincidence because there is just no way for medicine to predict when a person who has risk factors will have such a cerebrovascular event. But we do know that having a stroke sitting at one’s desk is not work related. Those claims get denied and are won by the employer. So think of “arising out of work” as meaning that there is a genuine “work connection.”
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
What happens when an employee is treating for one injury and during the course of treatment he or she develops a brand new injury? There are precious few cases on this set of facts, and the latest decision in Robinson v. United Airlines is extremely important to practitioners in analyzing how to approach derivative injury cases. Prudence Higbee, partner with Capehart Scatchard, won the case for United Airlines at trial and on appeal.
Priscilla Robinson, a flight attendant, suffered a work-related wrist fracture, requiring her to perform physical therapy. She claimed that on the first day of PT, namely June 15, 2016, the physical therapist had her lift a bar approximately to eye level multiple times. She said she did not feel well and experienced shortness of breath and heart palpitations while in therapy. Petitioner admitted that she did not complain of shoulder pain at therapy, but when she got home she said she felt shoulder pain. She saw her family doctor the next day, who ordered an MRI on June 22, 2016, which showed a rotator cuff tear. Petitioner eventually filed a claim petition contending that physical therapy for her wrist caused or aggravated the rotator cuff tear in her shoulder.
Respondent produced testimony from the physical therapist. She contradicted the critical element of petitioner’s testimony about exercising with a bar. She brought her contemporaneous notes to court, which made clear that all petitioner did on June 15, 2016 was stretching exercises. She said that she makes entries in notes covering all activities, and no bar movement occurred. The notes also made clear that petitioner never complained of shoulder pain, although she did report heart palpitations and a feeling of weight on her chest. The therapist offered to call 9-1-1 and take petitioner’s vital signs, but petitioner declined. Petitioner did return two days later saying she had shoulder pain. The therapist modified activities, and petitioner did not complain of any pain that day.
Petitioner returned on June 20, 2016 and had no complaints at all. She did several exercises that day, including a push-pull cart, which simulated pushing a beverage cart for 200 feet. She did other exercises with her right hand only.
Petitioner relied on the testimony of Dr. Craig Rosen, a surgeon, who saw petitioner on January 11, 2018. He recommended arthroscopic surgery to repair the torn rotator cuff. He opined that it was hard to say whether the tear was old or new but he did not feel it was a “longstanding chronic tear.” He felt it was caused by a lifting movement of a bar or doing some kind of swimming motion that petitioner mentioned. Dr. Rosen was emphatic that petitioner reported lifting some type of bar and going through a swimming type of motion on day one. He said that this movement could have caused a tear.
Respondent produced Dr. Kenneth Levitsky, also an orthopedic surgeon, who said that the most likely mechanism of injury for a rotator cuff tear would be an extension or abduction stretch-type injury with the arm overhead. He said a very forceful twisting injury could also cause such a tear. He examined the list of exercises that the therapist recorded. Dr. Levitsky said none of these exercises would cause a rotator cuff tear because they were not forceful enough and did not fit the classic mechanism of injury. He said, “There’s no exercise here that demonstrates or would cause a significant twisting force on the shoulder with the arm in an unusual position.” He concluded that the tear was likely preexisting. He had no evidence of petitioner having a prior rotator cuff tear, but he did note that petitioner had some degenerative changes that preexisted her PT.
The Judge of Compensation considered all the evidence and found in favor of United Airlines. The Judge held that petitioner did not carry her burden of proof that her rotator cuff tear was caused or exacerbated by her physical therapy for the wrist. He credited the daily activity logs maintained by the physical therapist. The Judge also noted that petitioner did not tell her own family doctor that she had suffered a traumatic accident on June 15, 2016. Further, the Judge found Dr. Levitsky’s testimony to be more persuasive than that of Dr. Rosen.
On appeal petitioner contended that the Judge of Compensation should have shifted the burden of proof to respondent to show that petitioner’s accident was caused by a prior, personal condition. Counsel for petitioner argued that respondent’s defense was that this incident was idiopathic, and that the burden shifts on idiopathic claims to the defense. The Court said, “We disagree. In our view, petitioner confuses those cases in which an employee’s idiopathic condition causes a work accident or event that results in injury, with a work accident or event that aggravates a pre-existing condition or injury.”
The Appellate Division found that this was not a case in which respondent was contending that petitioner’s rotator cuff tear was preexisting and personal. All respondent was saying was that petitioner never proved a work accident. The Court said, “… the dispute focused on whether petitioner’s shoulder injury was occasioned or aggravated by her therapy, or whether it represented the progression of a pre-existing injury. Stated differently, the dispute was whether any event had occurred at work and caused or aggravated petitioner’s injury. Consequently, the burden of proof did not shift to the employer and the JOC did not err by finding petitioner did not sustain her burden.”
In affirming the denial of the petitioner’s claim for the shoulder, the Court made an important distinction. When an employer is aware of a prior medical condition and believes that a new injury derives entirely from a personal condition, this triggers the idiopathic defense. In such cases, it is the employer’s burden to prove the condition is from personal causes. On the other hand, when a worker is arguing that he or she suffered a work incident but there is no evidence of any preexisting condition, the burden of proof remains on the petitioner to establish that a work injury occurred. The problem petitioner had in this case is that her doctor felt that the mechanism of injury was raising a bar to eye level; but petitioner could not show that she performed such a maneuver on the day of the injury.
This case can be found at Robinson v. United Airlines, A-5917-17T2 (App. Div. September 18, 2019). The winning tactic in this case for United Airlines was bringing in the physical therapist to rebut the testimony of petitioner as to the mechanism of alleged injury. That testimony, more than any other factor, led to victory for the employer.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
There are a large number of petitions for permanent partial disability benefits filed each year in New Jersey for scars and serious lacerations. It is important for practitioners to understand that injuries due to scars are subject to completely different proofs from all other physical injury claims in New Jersey.
The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function. Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award. In fact, it is uncommon that a scar injury has an impact on bodily function. The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder. Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.
Given that the test is essentially how disfiguring the scar looks, these kinds of cases may not even need an evaluation by a physician, although the practice statewide seems to favor getting IMEs. In many instances, it is more helpful to ask the injured worker to come to court so that the lawyers, and sometimes the Judge of Compensation, can view the scar if it is on the face, hands or arms. When the location of the scar is more private, or the claimant is uncomfortable having it viewed in person, a current photograph can be just as helpful or a description by a doctor in a medical report can suffice.
When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring. One does not need a medical degree to answer the following: Is it a raised scar? Is it uneven or bumpy? Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring. In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36.
Because scars take a long time to heal and because collagen breaks down slowly at the site of the wound, the scar may fade significantly over a long period time. For this reason, it is not wise in serious scar injury cases for respondents to rush to get an IME soon after the injury. Often scars improve markedly one year or more after the initial injury. It is often startling to see how different the injury site looks at the time of the work incident versus how it looks one or two years later.
Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury. For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)? The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar. An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks. The defense, in this instance, would need an IME with its own psychiatrist.
The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement. In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
This practitioner is often asked two questions regarding workers’ compensation settlements in New Jersey: 1) Can we settle out of court? and 2) Can we get a termination agreement at the time of settlement?
There are a number of limitations on settlements in New Jersey that are different from the practice of law in other states. One has to do with the prohibition against out of court settlements. The employer, third party administrator or carrier may not reach an agreement with the injured worker to settle a workers’ compensation claim unless that claim is the subject of a claim petition properly filed and heard before a Judge of Compensation. An injured worker is not even eligible for an award of permanent partial disability until he or she files a claim petition through counsel.
Three sections of the New Jersey Workers’ Compensation Act make this clear: N.J.S.A. 34:15-22, 34:15-39, and 34:15-50. In all three sections, as a precondition to settling any claim of workers’ compensation, a claim petition must be filed in the Division of Workers’ Compensation, and only the Judge of Compensation can enter an order approving settlement or one of dismissal.
Another major distinction between New Jersey and other states has to do with waiver of workers’ compensation rights in other agreements. The statutes cited above make clear that the employer may not ask an injured worker to waive rights to workers’ compensation as part of another agreement, such as a separation agreement. There are many laws that can be waived in a valid separation agreement, such as rights under the ADA, FMLA, etc., but workers’ compensation is not one of them. These kinds of waivers are against public policy.
Similarly, it is fairly common in many states that an employer will get a signed letter of resignation at the time of the workers’ compensation settlement. There are both practical and legal reasons why this does not happen in New Jersey. First, most injured workers are back to work doing the very same job by the time the settlement occurs. That is a big practical difference from other states where workers remain out of work for years even for relatively modest injuries.
New Jersey is not a wage loss state but rather a functional loss state. Most of the injured workers in New Jersey who have formal claim petitions in the Division have already returned to work long before the settlement, either to their former job or a new job. In wage loss states like Pennsylvania, the injured worker may have been out of work for years by the time the case is settled. In states like Pennsylvania, the worker who has been away from work for years may agree to provide a letter of resignation for nominal consideration.
In New Jersey, going back to work – even the same job – does not detract from the ability of the injured worker to obtain a compensation award for permanent partial disability. Injured workers in New Jersey may receive both temporary disability benefits and an award of permanent partial disability as part of the same case. There is no requirement that an injured worker prove impairment of working capacity to obtain an award of permanent partial disability. All the injured worker must do is prove objective medical evidence of impairment as well as substantial impairment of major life activities.
Since the vast majority of injured workers are back to work in New Jersey at the time of settlement and doing the very same job as the one they did before their injury, seeking a resignation letter is fraught with legal peril. First, the employee is often an active working unit performing essential job functions. In that situation, there is seldom any legal basis to terminate someone who is doing his or her job satisfactorily. Second, many judges would view an attempt to terminate an injured worker as part of a workers’ compensation settlement as retaliatory or a violation of the New Jersey Law Against Discrimination. If the employee is able to perform the essential functions of the job, termination of employment as part of a settlement of a workers’ compensation claim would likely lead to immediate labor law litigation.
So can an employer ever get a resignation at the time of settlement? It can be done but it must be done through labor counsel, following all the rules that prevail in such agreements in New Jersey. Further, these employment releases are only done when the employee remains out of work for a very long time. The agreement between the parties must be negotiated for separate consideration, and the injured worker will almost certainly need his own labor counsel. There are many laws that such an agreement must cover to be effective, and any employment release must meet state and federal legal requirements.
If the parties do reach an agreement on termination of employment through respective labor counsel, that agreement will not be placed on the record in the New Jersey Division of Workers’ Compensation. Judges will not reference any separation agreement nor determine whether it is fair or just. The employment agreement is executed outside workers’ compensation court with both sides having retained labor counsel to advise them.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The case of Kaur v. Garden State Fuels, Inc., A-2135-17T1 (App. Div. April 12, 2019) presents some interesting legal issues. The facts begin with the tragic death of Surinder Singh, who was shot and killed during the course of his employment at Woodbury Gulf LLC.
In 2014 Singh’s widow, Kirandeep Kaur, filed a dependency claim petition in workers’ compensation. The gas station was uninsured for workers’ compensation at the time of her husband’s death. Mr. Goyal and Mr. Saini were the sole members of the Woodbury Gulf LLC.
In 2015 Kaur sued Woodbury Gulf civilly alleging that the station’s negligence led to the death of her husband. She amended that suit in 2017 to add a claim against Mr. Goyal.
On March 28, 2016, petitioner settled her workers’ compensation dependency claim petition for $150,000. She said that she understood that the Section 20 settlement was final and that she could not return for further workers’ compensation benefits. Petitioner received mostly deferred payments from the two members of the LLC: $30,000 up front followed by $5,000 each month for 24 months. The Order recited that the settlement was not a complete and absolute surrender and release of any and all rights of petitioner’s dependents under Section 13. This was important because the petitioner and decedent had two young children.
The Judge of Compensation did not sign the 2016 order but waited until 2018 when all payments had been made. Counsel reappeared on April 13, 2018, and the Judge again commented that this Section 20 settlement did not contemplate a release of decedent’s dependents’ rights.
Meanwhile in her civil law suit, Kaur made some interesting arguments:
1. She argued that she could sue Woodbury civilly because the gas station’s insurance had lapsed. She contended that this was akin to an intentional wrong, thereby exempting her from the fundamental rule that neither an employee nor an employee’s dependents can sue the employer.
2. She also argued that payments under a Section 20 are not recognized as workers’ compensation payments for any purpose other than for insurance rating purposes, so a civil suit should be permitted.
The motion judge ruled for Woodbury LLC and its members, holding that the civil law suit was barred. Kaur appealed. The Appellate Division devoted a good deal of analysis to Section 20 settlements. It said, “A Section 20 settlement bars a subsequent lawsuit against the paying employer as it would be unfair to hold the employer liable for both common law damages and workers’ compensation liability,” citing Hawksby v. DePietro, 165 N.J. 58 (2000).
The Court also seemed to suggest that a Section 20 settlement amounts to an implied acknowledgement that a claimant’s disability is work related, citing the Sperling case for this concept. For these reasons the Appellate Division affirmed the ruling that petitioner and her children could not sue her husband’s employer or the members of the LLC.
As for the failure of Woodbury to maintain insurance for its own employees, the Court pointed out that this was potentially either a disorderly person offense or a fourth-degree crime, depending on whether the actions were willful. Nonetheless, the Court ruled, “Their failure to maintain insurance did not alter the effect of the Workers’ Compensation bar, especially since plaintiff took advantage of the Act’s statutory scheme to obtain benefits under the Section 20 settlement.”
Importantly, the Court confirmed that consent of the workers’ dependents must be obtained for a Section 20 settlement that purports to waive dependency benefits. In sum, the Court held that the two minor children were entitled to bring a dependency claim of their own against Woodbury Gulf and the members of the LLC. The Court cited the Kibble case for the proposition that “a Section 20 settlement between the employer and a claimant ‘cannot extinguish the rights of those who do not participate, or do not have the opportunity to participate in a settlement.’”
The case is helpful in understanding that it does not really matter whether the workers’ compensation claim is resolved under an order approving settlement with reopener rights or a Section 20: in either case, the claimant and his or her dependent cannot bring a civil action against the employer since the exclusive remedy is workers’ compensation.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
An independent medical examination can be requested at any reasonable time and place in the state for a variety of reasons: there may be an issue of causation, ability to work, second opinion on surgery, need for further treatment, or assessment of permanent partial disability. No matter what the purpose of the examination is, a well-reasoned IME is critical to the successful defense of workers’ compensation claims.
This blog focuses on the steps employers, carriers, third party administrators and lawyers should take as well as the mistakes to avoid in setting up IMEs.
Explain the nature of the claim to the IME physician.
Example: Employee files an occupational claim petition alleging physical labor from 2000 to January 30, 2019 caused knee pathology. The employer denies the claim petition. An IME is arranged. There is no explanation of the allegations of the claim to the IME physician. No letter is ever sent other than perhaps a check-off letter asking for guidance on “permanency” and “causation.” The injured worker tells the physician during the IME that on January 30, 2019 he felt pain in his left knee while walking at work. The employee has an MRI showing a tear. The doctor writes a report stating, “I find that the petitioner’s accident of January 30, 2019 caused his knee pathology and I recommend arthroscopic surgery.”
What went wrong? The claim was not for a specific accident! January 30, 2019 was just the last day of exposure when the pain was noticed or became intolerable. Occupational claim petitions are required to list a beginning and end date. This claim asserted that 19 years of physical labor caused the knee pathology, not walking at work one day (which is not a true accident). The doctor in this case did not know that the claim was denied, nor that this was truly an occupational claim and that the worker was never injured on any particular day.
Send the IME physician key information in the case:
As a general rule, the IME physician wants to read the claim petition to understand the formal allegations, as well as the answer of the respondent. The doctor wants to see all treating records including prior records that may be relevant. If there are answers to interrogatories, the doctor will want to see them as well because they often contain important information. If there is a recent and subsequent injury, whether work or non-work related, the IME doctor will want that information.
If you have a specific doctor or type of specialty you need for an IME, don’t call an IME group and ask for the next available IME date without mentioning the particular physician or specialty.
IME companies have dozens of physicians that they schedule for IMEs. Some are surgeons; some are not. If you want the earliest possible date, the company will find the physician whose calendar is open and assign you that doctor. That may or may not be the doctor or specialty you wanted. Some physicians are very busy and booked out for three months; others have fewer assignments. If you just want any orthopedic surgeon as soon as possible, but you do not want an occupational physician or physiatrist, then make that clear.
Make sure you have all the relevant records –including records of prior and subsequent accidents – before setting up the IME.
We all want cases to move quickly. The average New Jersey claim petition lasts 28 months, so understandably clients are concerned about moving files. However, rushing an IME is generally a mistake. The absence of critical records often costs the employer a great deal of money. The IME doctor can only give an opinion on the records he or she has. There may be prior records that will show that the condition at issue was already in existence a few months before the accident, or that there has been a subsequent non-work car accident which has significantly aggravated the work-related condition. The process of getting medical records takes time. It takes time to prepare and send HIPAAs to opposing counsel, who then send them to their clients to be returned to respondent counsel. Hospitals often delay sending records. The hospital may reject the medical authorization and demand a subpoena. But getting the prior or subsequent medical records may help clarify whether the claim is even work related, thereby avoiding costs of surgery and a large permanency award, with a potential reopener down the line. This practitioner has seen cases where the doctor is missing almost all the treating records and writes a report basically drawing no conclusions pending receipt of medical records. That creates a need for a second IME with double the cost.
When a case has high exposure or is likely to be tried, retain the most qualified expert.
Yes, it costs more to retain a board certified expert with a sub-specialty. But there are many high exposure cases in workers’ compensation, and the cost of not retaining a specialized expert is far greater than the extra $1,000 you may pay for a medical report from a highly qualified expert. When you have a case involving lung cancer, you should retain a board certified oncologist or pulmonologist. There are many internists who do such examinations but they may not have sat for or passed the board certification in pulmonology. The outcome of a case often depends on the credibility of competing experts. Judges always assess credibility of medical experts; they review their training and qualifications, and they consider the expertise of the IME physician when the experts flatly disagree on an issue in the case. This advice is also true in orthopedic cases. If the case involves an issue of whether a fusion surgery should be performed, respondent is far better off retaining an expert who performs fusions, rather than an expert who does not perform such surgery.
Find out early on if a translator is needed.
There are few things in workers’ compensation more frustrating than cancellation of an IME because the employee could not converse with the IME physician. Contact must be made early on with petitioner’s attorney to inquire whether the injured worker will need a translator and if so, what specific language will be needed.
Try to make a reminder call or send an email to petitioner’s attorney a few days before the IME.
This is not always possible to do, since everyone is so busy, but it pays off. Many times a letter is sent to a petitioner’s attorney two or three months before the exam date. When an exam is set up months in advance, there is a higher likelihood of a missed appointment. Communications fall apart or injured workers forget about the exam date. If possible, a follow-up call or email to counsel a few days before the exam may eliminate a potential missed appointment.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
In an important reported decision, and one of first impression at the Appellate level, the Court in Collas v. Raritan River Garage, A-3103-17T4, (App. Div. July 19, 2019), held that the Judge of Compensation was correct in basing the counsel fee of petitioner on petitioner’s life expectancy, not limited to 450 weeks, as has been the practice in the New Jersey Division.
For many decades, judges of compensation have awarded counsel fees in dependency cases on a 450-week period, even though dependent spouses receive benefits until their death, unless they should remarry. Counsel in Collas argued that basing the fee on the life expectancy of the dependent spouse makes more sense. The Judge of Compensation reviewed two places in the statute where 450 weeks is referenced. First N.J.S.A. 34:15-12(b) provides in total disability claims that compensation shall be for a period of 450 weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission, and can show that because of such disability it is impossible for the employee to obtain wages or earnings equal to those earned at the time of the accident.” Otherwise the statute makes clear that total disability benefits continue beyond 450 weeks.
The other statute that discusses 450 weeks appears in N.J.S.A. 34:15-13 pertaining to dependency claims. That section states that “This compensation shall be paid, in the case of the surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks …If a surviving spouse remarries before the total compensation is paid, he or she is entitled to a payment of 100 times the amount of the weekly compensation immediately preceding the remarriage, whichever is lesser. The statute makes clear that a dependent child may receive dependency benefits throughout attendance at a full-time college or university but no later than age 23. The so-called marriage penalty does not apply to the surviving spouse of a deceased member of the state police or member of a fire or police department or force who died in the line of duty.
Raritan River Garage argued that it has always been the accepted practice in the Division to base the counsel fee of the prevailing dependent on a 450-week period. Further, Garage argued that it is speculation to pay a counsel fee on an amount of years beyond 450 weeks because the spouse may remarry or die. The Judge of Compensation disagreed and asked the following rhetorical question: “Is a previously legislatively mandated 450-week period less speculative in terms of calculating [Collas’] true award than the life expectancy tables published in the court rules?”
The Appellate Division agreed that using life expectancy tables is no more speculative than using a 450-week period. The Court also observed that there is no link in Section 13 governing dependency awards to the section of the statute governing counsel fees in N.J.S.A. 34:15-64. That section authorizes the Judge of Compensation to award a counsel fee to a successful petitioner’s attorney “not exceeding twenty percent of the judgment.”
The Appellate Division also noted that the 450-week period does not distinguish whether a surviving spouse is 20 years old or 60 years old. In this case, Ms. Collas had a life expectancy of 12.7 years. The Court did not hold that the life expectancy calculation must always be used. “We determine only that the use of the table method was a reasonable option utilized by the judge. We recognize that using the table method will, in many cases, increase the potential size of a fee award. We thus caution against a reflexive application of a twenty-percent award without full analysis.”
Attorney Rick Rubenstein, who argued this case successfully in the Appellate Division, was interviewed following this decision. He addressed two issues that many practitioners are now considering in light of the Collas decision. One is whether acceleration of one-third payments when there is a very large third party recovery in a dependency case should also be based on the life expectancy of the dependent spouse. Mr. Rubenstein said that he believes that the logic of Collas would extend to this situation. He noted that payments of one third to a dependent where there is a large third party recovery are not technically payments of compensation but rather contribution to counsel fees. If the counsel fee to a dependent spouse is based on the life expectancy of the dependent, the argument would be that the return of the counsel fee to the dependent spouse would be analyzed in the same manner.
The other issue which Mr. Rubenstein addressed is whether the rule in Collas may be applied by future courts to total disability claims. He said it is possible but less likely than the decision in Collas. “Courts will likely see a distinction between the marriage penalty in Section 13, and the re-employment offset in Section 12, both on practical grounds and public policy grounds. There is no public policy promoting remarriage, or marriage, for that matter. There IS a public policy favoring rehabilitation and re-employment. That public policy is reflected in the base period of 450 weeks absent from the dependency statute, and also reflected in the “contingent” nature of 12(b) benefits. 12(b) is contingent upon no active income, qualification upon examination, and lack of rehabilitation which is an ‘aim’ of the Act.”
This decision is certainly a significant one for practitioners and will require employers, carriers and third party administrators to amend the traditional calculation of reserves for counsel fees in dependency cases.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
There are precious few reported decisions dealing with the jurisdictional requirements for bringing a claim petition in New Jersey when a New Jersey resident is employed out of state, is injured working out of state and is hired out of state. In the reported case of Marconi v. United Airlines, A-0110-18T4 (App. Div. July 22, 2019), the Appellate Division affirmed the dismissal of two claims against United Airlines for lack of jurisdiction in just this situation. The case was successfully handled at both the division and appellate levels by Prudence Higbee, Esq., a partner with Capehart Scatchard.
The facts in the case were not disputed. Richard Marconi lived in New Jersey and suffered a work injury to his left hip on January 31, 2015 working for United Airlines in Philadelphia. United paid full benefits to Marconi under Pennsylvania law, but eventually Marconi brought two claim petitions in New Jersey seeking permanency benefits that were not available in Pennsylvania. One claim petition was for the accident in 2015 and the other was an occupational claim alleging work exposures from 1988 to the present. Mr. Marconi admitted he was not hired in New Jersey and worked most of his career in Philadelphia with only a brief period of employment at Dulles Airport.
United moved to dismiss both claim petitions for lack of jurisdiction in New Jersey. Marconi tried to build up his contacts with New Jersey as much as he could. He argued that his supervisor reported to a United employee at Newark’s Liberty International Airport. Marconi also contended that he himself would telephone United staff at Liberty International Airport once every couple of months for technical advice. He received training all over the world, including in Newark. He would fly from Newark whenever United assigned him to do “field service.” Marconi’s supervisor sometimes would drive to Liberty International Airport to retrieve parts there. United argued that these contacts with New Jersey were truly minimal.
The Judge of Compensation reviewed Professor Larson’s treatise on grounds for jurisdiction:
1. Place where the injury occurred;
2. Place of making the contract;
3. Place where the employment relation exists or is carried out;
4. Place where the industry is localized;
5. Place where the employee resides; or
6. Place whose statute the parties expressly adopted by contract.
The Judge of Compensation dismissed both claims, finding that residence in New Jersey alone has never been sufficient for jurisdiction. The Appellate Division emphatically agreed: “We conclude that residency alone is an insufficient basis to confer jurisdiction on the Division for extra-territorial workplace injuries.”
Petitioner argued on appeal that even if residency alone was insufficient, the fourth factor, namely “place where the industry is localized,” should have been sufficient for jurisdiction in conjunction with petitioner’s residency in New Jersey. There are only one or two published cases that have ever discussed the concept of “localization” of an industry, and Marconi provides the most complete analysis to date, citing cases from around the nation on this concept.
First the Court said that “in no state workers’ compensation scheme was localization alone sufficient to confer jurisdiction.” Professor Larson explained the rationale for localization of an industry as a criterion for jurisdiction: “The state in which the employer’s business is localized has a relevant interest in a compensable injury . . . since the obligation side of the compensation relation is as much a part of that relation as the benefit side, and since the burden of payment would ordinarily fall most directly on the employer and community where the industry is centered.” The Court seemed to accept Marconi’s argument that New Jersey was a place where United’s industry was localized, but it still rejected jurisdiction. That was the most interesting aspect of the case.
The Appellate Division in Marconi analyzed the concept of localization in terms of advancement of company interests. “It is the nature and frequency of the employee’s relationship with the localized presence of the employer that lends weight to the fourth Larson factor. In other words, in this case, did Marconi’s ‘duties to a substantial extent . . . implement the localized business’ of United in New Jersey?” (citations omitted). The Court answered its own question in the negative. “Essentially, nothing in the course of Marconi’s two-decade employment with United advanced the company’s localized interests in New Jersey. In these circumstances, although United maintained a localized business interest in Newark, New Jersey has no substantial interest in exercising its jurisdiction over the petitions.”
The Court explained that Marconi’s contacts with Liberty International were mainly to advance Marconi’s ability to perform his work in Philadelphia. “Even when Marconi used United’s facilities at Liberty International Airport, it was to serve United’s interest elsewhere around the country.”
After disposing of the traumatic claim petition for lack of jurisdiction, the Court then dealt briefly with the occupational claim petition, reminding practitioners that there is a different standard for jurisdiction in occupational claims from traumatic claims. The Court cited Williams v. Port Authority of New York & New Jersey, 175 N.J. 82 (2003) to make this point clear: “The petitioner must demonstrate either that (1) there was a period of work exposure in this State that was not insubstantial under the totality of circumstances and given the nature of the injury; (2) the period of exposure was not substantial but the materials were highly toxic; or (3) the disease for which compensation is sought was obvious or disclosed ‘by medical examination, work incapacity, or manifest loss of physical function’ while working in New Jersey.” Obviously petitioner could not meet this test because there was no work exposure in New Jersey.
In the opinion of this practitioner, the Marconi decision provides the most thorough analysis to date of the fourth criterion cited by Professor Larson in his treatise, namely “localization of business.” The Court flatly concludes that “localization of business” alone is insufficient for New Jersey jurisdiction. The implications of this statement are significant because there are hundreds of cases pending in New Jersey now involving medical claim petitions where the injured worker lives in New York, is hired in New York, and works in New York. The only connection to New Jersey in many of these claims is that a medical procedure occurred in New Jersey. Medical providers have filed countless claims of this nature seeking jurisdiction in New Jersey to argue that the New York fee schedule should not apply and ultimately seeking the right to additional reimbursements. The Appellate Division has yet to weigh in on these cases. When one of these MCP cases finally reaches the Appellate Division, one can expect that the analysis in Marconi will certainly be considered.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.